Caitlin Hadlee and I have been travelling around New Zealand over the last few months presenting on IP rights to members of the film and TV industry. It has highlighted to us the incredible talent that exists within New Zealand in our creative industries. It has also highlighted to us certain gaps that exist within the industry in terms of understanding the rights that allow creatives to get projects off the ground and to make a living.
One of key rights we talk about in our workshops is copyright and, within that, the use of “soundalikes”.
What are Soundalikes?
Soundalikes have been a common feature for some time in film and TV productions. For example, film production teams may write to music houses and ask them to produce “a rip off of X” or “something similar to Y” because obtaining the rights to “X” or “Y” would be too expensive. This practice is no longer prudent (if indeed it ever has been) and could result in an infringement claim being brought in respect of the resulting “soundalike”.
Musical Copyright Infringement
Historically in musical copyright infringement, and particularly in the USA, Courts took the approach that a substantial part of the melody had to be copied in order to establish infringement, leaving the non-melodic elements free for other composers to use. While there is some doubt that New Zealand ever followed the USA on this “rule”, this is now conclusively no longer the approach in this jurisdiction, and it appears it may no longer be the case in the USA either.
Several recent cases have held that borrowing a combination of non-melodic elements, amounting to the “essence” of the work,can now suffice for infringement.The “essence” can be taken from non-melodic elements such as bass lines, tempo, drums, harmonies, structure,instrumental riffs, key etc, where such elements are qualitatively important (i.e. key to the work).
Recent examples of this approach can be seen in cases such as:
- Blurred Lines, where Robin Thicke and Pharell were successfully sued by Marvin Gaye’s family for their song “Blurred Lines”. Rather than a strict copying of the melody, the song was found to be infringing as it copied the “style” of the Gaye song “Got to Give It Up” in terms the beat and bass lines background elements.
- The Kookaburra case, where the distinctive flute riff in the Men at Work song ‘Land Down Under’ from 1978 was held to infringe the old Australian song 'Kookaburra Sits in the Old Gum Tree' written by the Girl Guides leader Marion Sinclair in 1934, on the basis that, while very little was taken, the part taken was the distinctive part that “sticks in your head”. The similarity between these two works was so subtle that no one had noticed the infringement for 30 years. A comparison only came about in 2007 after the association was raised on an Australian television music game show.
- Eminem, where the Court held that rather than undertaking a note for note melody comparison, it was the “sounds” of the two works that should be compared. While not protectable by themselves, a sufficient taking of a combination of (arguably, genre-defining) elements such as bass lines, keyboard chords, vocal contours and hooks were held to be capable of amounting to substantial similarity between the two works. It is therefore officially possible to infringe copyright in a musical work without taking the actual notes, if the effect of borrowing the non-melodic elements result in two works sounding the same or substantially similar.
Eminem’s “Lose Yourself” used commonly employed chords (and also chord-progressions) which were arguably “borrowed” from Led Zeppelin’s “Kashmir” or even Igor Stravinsky’s “The Rite of Spring”. Despite this, the Court found that it was the “hypnotic” guitar strum, the beat and the sonic bed, together with the piano figure and the guitar line that gave “Lose Yourself” its distinctive sound or “essence”. The soundalike in this case (unhelpfully titled “Eminemesque”) was held to have substantially reproduced that “essence”.